- (1.) THESE are two appeals under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 against the orders of the Jagir Commissioner, Rajasthan dated 18. 7. 1962 determining the compensation claim of the jagirdar in claim No. F (37) JC/bmr.
(2.) WE have heard the counsel for the parties and have also carefully examined the record. Both in the State appeal as well as in the appeal of the jagirdar, two common items have been agitated, namely, income under grazing and non-agricultural uses of land. The learned Jagir Commissioner after examining the record and the evidence produced before him allowed a sum of Rs. 4066/- against a sum of Rs. 3249/10/8 claimed for grazing and Rs. 3994/19/8 claimed for non-agricultural use of land. The first objection raised from both sides was that the learned Jagir Commissioner should have determined the income under each head separately as given in paragraph (2) of the Second Schedule and determined the income under these heads jointly. The learned Government counsel also objected to the income allowed under these two heads because the learned Jagir Commissioner followed an ad hoc basis of allowing a rate of Rs. 1/- per bigha to the claimant for the income under 'grazing' as well as for non-agricultural use of land. It was urged by the learned counsel that such ad hoc assessment was not warranted anywhere under the law and that the learned Jagir Commissioner had erred in following such a procedure instead of determining the income under each head on the basis of the evidence adduced. The learned counsel for the appeallant-jagirdar also objected to the income allowed under these two heads and the procedure adopted. He added that in rejecting the claim of the jagirdar, the Jagir Commissioner had dealt at length with the report of the auditors and that such report could not be admitted into evidence unless it had been properly exhibited and the parties concerned had an opportunity to file their objections and cross-examine the auditors in regard to the contents of their report. We have already had occasion to observe in similar cases where the Jagir Department had depended upon the auditors' report may be a document which might have been informally applied to help the Jagir Commissioner, but the finding which he has to arrive at in respect of incomes claimed under different heads must be reached in a judicious manner based on the evidence, oral and documentary, adduced by the parties. There should be a definite finding as regards the documentary record and particularly the accounts books as to whether they were kept regularly in the ordinary course of business and were thus acceptable as satisfactory or reliable evidence corroborated by such other reliable evidence as may be forthcoming. Instead of following this procedure, the learned Jagir Commissioner has adopted a novel method of his own in arriving at a figure based on an ad hoc rate which is not based on any law whatsoever. It was also in not accordance with the law that one figure could have been reached as the income in respect of two separate incomes claimed under sec. 2 of the Second Schedule, namely, sub-section (c) "income from grazing fields" and subsection (e) Income from other non-agricultural uses of land". The evidence in resect of these two separate incomes should have been examined and a finding reached as regards the amount which he considered fit to be allowed on a judicial examination of the record and evidence produced by the parties. Since the learned Jagir Commissioner has not followed this procedure, his award in respect of the income under 'grazing' and other non-agricultural uses of land cannot be accepted and has to be set aside. The learned Jagir Commissioner will re-examine the evidence produced by the parties in support of the income claimed under these two heads and then redetermine the amounts in accordance with the law and the prescribed procedure. Dealing now with the appeal of the appellant jagirdar excluding the two items, already dealt with above, namely, grazing and non-agricultural uses of land, the other item which was challenged by the appellant-jagirdar is in respect of the rental income. A sum of Rs. 82801/8/6 was claimed by the jagirdar as income under 'rent and Revenue' while a sum of Rs. 14876/30 np. was allowed. It is not known from where the learned Jagir Commissioner has obtained the figure allowed by him under this head and how he has arrived at it. The jagir was resumed on 1. 8. 1954 and the basic year of this jagir was Smt. 2010. When it was resumed the jagir was unsettled. Therefore, the rental income of this jagir was to be determined in accordance with the provisions of sec. 7 and sec. 8 of the Jagirs Act. The learned Jagir Commissioner has at length dealt with this aspect, but it was alleged by the learned counsel for the appellant-jagirdar that an assessment under sec. 7 of the Act was made by the Collector on the basis of settled rates, and that no proper assessment as contemplated by sec. 7 in the case of an unsettled jagir was made. On file 'b' from Pages 69 to 71, there are copies of the notices issued to the jagirdar. The notice issued at p. 69 is under sec. 7 sub-sec. (1) and at the back of this notice there is an endorsement by the process server that it could not be served upon the jagirdar as he had gone to village Sai on the demise of the jagirdar Sai and that the copy of the notice had been affixed on his house. The process server's report at the back of this notice is dated 13. 3. 1952, but the notice itself does not bear any date. The jagirdar was required to give the statement of income within 60 days of the issue of the notice. There is a second notice issued again under sec. 7 sub-sec. (1) which has been admitted to have been received by the Kamdar. This notice has been acknowledged also by the Jagirdar on 2. 5. 1953. A third notice was also issued under sub-sec. (1) of sec 7. On this there is an endorsement by the process server to the effect that the jagirdar was staying in his bungalow at Jodhpur and that he was not at Patodi. From these it is clear that the notice issued under sec. 7 sub-sec. (1) was received by the jagirdar on 2. 5. 1953 but there is nothing to show as to what further happened. There is a report from the Collector (Jagir) Barmer addressed to the Jagir Commissioner dated 26. 4. 1960 which is at page 67 of file 'b' to the effect that no separate assessment file of this jagirdar was ever prepared by the Collector. The Collector has further reported that a register has been made tehsilwise in respect of the notice issued under sec. 7 (1) and the amount determined under sec. 8 and he sent copies along with an extract of the register fixing the land revenue demand of this jagirdar. From this record it is clear that the procedure prescribed in secs. 7 and 8 and Rule 9 has either not been followed or if followed the record is not available. It is difficult to accept the learned Jagir Commissioner's finding that the Collector actually assessed the land revenue of this jagir on the basis of the settled rate after giving proper notice to the claimant In the absence of any record and in view of the clear report of the Collector that no separate assessment file was opened for this jagir, it is not possible to come to any definite conclusion as to whether the procedure prescribed in respect of the unsettled jagir had been followed. From the correspondence which has taken place between the Jagir Commissioner and the Deputy Collector, Jagirs, Barmer which is available at pages 29 to 35 of file 'a' it will be seen that on 11. 3. 1959 the jagirdar's counsel made a request. to the Jagir Commissioner that assessment of the rental income of this jagir may be made. On this the Jagir Commissioner wrote to the Deputy Collector Jagir, Barmer asking for a report on the subject. The Deputy Collector Jagir, Barmer reported that no assessment had been made earlier and that if also ordered assessment may now be made. On 23. 9. 1959 the Jagir Department directed the Deputy Collector Jagir Barmer to make an assessment on the basis of the assessment given by the jagirdar himself. No further report has been sent by the Dy. Collector, Jagir Barmer. It can be presumed from the letter of the Collector dated 26. 4. 1960 at page 67 of file 'b' that no actual assessment was made. The learned Jagir Commissioner has referred to rule 9 of the Jagir Rules whereby settled rate could be applied in calculating the rental income in certain contingencies. It was argued by the counsel of the jagirdar that that rule only applied where the jagirdar had failed to furnish a statement under sub-sec. (1) of sec. 7 and not otherwise. In the present case, since no record is forthcoming, it is not possible to come to any conclusion whether the provisions of Rule 2 can be made applicable. We, therefore consider that the learned Jagir Commissioner has not enquired into this matter in accordance with the provisions of the law and the rental income has to be re-determined following the provisions of sec. 7 and sec. 8 of the Jagirs Act read with Rules 3 to 9 of the Jagirs Rules. The learned counsel for the Jagirdar also objected to the deduction of Rs. 11016. 66 np. It was contended that no opportunity was given to the appellant to make his representation in regard to this deduction which represented the realisation alleged to have been made by the claimant during the period of the stay order as this amount was payable to the Government. It was urged that any such deduction could be made only on the basis of a certificate in form No. 10 from the Collector which had not been issued and therefore this deduction was not in accordance with the law. It was also stated that necessary recovery on this account had already been made from him by the Tehsil authorities. This is a matter which requires to be examined. If the deduction is found to be in respect of the realisation made during the stay period, the provisions of sec. 25 of the Jagirs Act will come into operation and necessary enquiry should be made accordingly before any amount is deducted on that account otherwise the deduction should be made accordingly before any amount is deducted on that account otherwise the deduction should be only made on the basis of a certificate in form No. 10 from the Collector, on which the jagirdar-appellant is entitled to make his representation and which should also be enquired into by the learned Jagir Commissioner before any amount is deducted on that account. Thus, we accepted the appeals filed by both the State and the jagirdar and remand the case to the learned Jagir Commissioner with the direction that he should re-assess the incomes under the heads "rental income" 'grazing and non-agricultural uses of land' and also re-enquire into the question of the deduction of Rs. 11016. 66 np. in accordance with the law and in the light of the observations made above and thereafter redetermine the final award of the compensation payable to the appellant-jagirdar. . ;